The Supreme Court Could Axe Efforts to Reduce Big Money

The Supreme Court has decided to review a 1998 Arizona law which provides public financing to qualified candidates. This decision will likely define the constitutional boundaries of public financing laws across the country.

Critics claim programs that provide public funding for candidates are welfare for politicians, that the public should not be forced to support candidates with whom they disagree, and that public funds could be better spent in other areas. Proponents, on the other hand, contend that these programs provide qualified candidates who may not have access to campaign funds with the opportunity to run competitive campaigns, allow candidates to spend time with all of their constituents and not just those who can provide campaign donations, reduce corruption or the appearance of corruption, either of which may arise as a result of private contributions, and increase public confidence in their elected officials.

In an effort to allow publicly financed candidates to remain competitive in the face of heavy opposition spending from privately financed opponents or independent expenditure groups, many public campaign finance laws provide so-called "rescue funds." These rescue fund provisions now stand on constitutionally shaky ground because of the Court's 2008 decision in Davis v. FEC.

In its misguided 2008 decision, the Supreme Court found struck down a portion of the Bipartisan Campaign Reform Act (popularly known as McCain-Feingold), the so-called "Millionaire's Amendment," on First Amendment grounds. That amendment provided that a candidate running against a self-financing candidate could raise triple the normal contribution limits. The Court found that this amendment unconstitutionally limited a self-financing candidate's First Amendment right to spend as much of his own money as he wishes, concluding that a self-financing candidate would be not want to continue spending his own money if he knew his candidate would be able to raise larger contributions. In addition, the Court looked with disfavor on the state's asserted interest in leveling electoral opportunities for candidates of differing personal wealth.

Enter John McComish and company. McComish and some past and future candidates and a political committee challenged the constitutionality of the rescue funds provisions contained in Arizona's public campaign financing law claiming in essence that under the Court's 2008 decision the First Amendment rights of non-publicly financed candidates and independent groups is infringed upon under Arizona's law, because their spending triggers a publicly financed candidate's receipt of additional public funds. Put another way, plaintiffs claimed that they would not want to keep spending money if that action triggered the receipt of public funds by an opposing candidate.

The 9th U.S. Circuit Court of Appeals disagreed, finding that Arizona's public campaign financing law was not the same as the Millionaire's Amendment, in part because the purpose behind the two provisions is different. The Millionaire's Amendment was designed to level the electoral playing field, an interest that has never been in favor with the Court. The purpose of Arizona's public campaign financing law, by contrast, is to reduce corruption or its appearance, an interest that have long been upheld by the Court.

Further, the Millionaire's Amendment treats similarly situated candidates disparately, while Arizona's law treats different candidates differently. In Arizona's law, one candidate opts into a public financing scheme, and another does not.

In June, in an ominous move, the Court issued an order to stay the Ninth Circuit's ruling.

The Court's ruling will likely determine the constitutional limits of rescue fund provisions across the country.

An earlier, lengthier version of this article is cross posted in the Daily Journal.